Tommy Edward Hatcher, Petitioner-appellant, v. United States of America, Respondent-appellee, 943 F.2d 51 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 943 F.2d 51 (6th Cir. 1991)

Sept. 16, 1991

Before KEITH and BOYCE F. MARTIN, Jr., Circuit Judges, and KRUPANSKY, Senior Circuit Judge.


Tommy Edward Hatcher, a pro se federal prisoner, appeals the district court's order denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1989, a jury convicted Hatcher of conspiracy to distribute and possess with intent to distribute cocaine, using a communication facility to facilitate a violation of the federal narcotics statutes, carrying a firearm during and in relation to the unlawful conspiracy, and possessing several unregistered firearms and machine guns. The district court sentenced Hatcher to thirteen years imprisonment. This court affirmed Hatcher's conviction on direct appeal.

Hatcher subsequently filed a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. Hatcher alleged that counsel rendered ineffective assistance by failing to interview a potentially exculpatory witness. While this motion was pending, Hatcher filed a second motion pursuant to 28 U.S.C. § 2255 alleging the same grounds.

Upon reviewing the two motions and determining that they were nearly identical, the district court ordered the U.S. Attorney to respond to the first motion, and denied the second motion. The district court subsequently denied Hatcher's motion for reconsideration. Hatcher has filed a timely appeal from the denial of his second motion.

Upon review, we affirm the district court's judgment. The district court properly denied the second § 2255 motion as the grounds asserted for relief were already raised in the first § 2255 motion. 28 U.S.C. § 2255; Rule 9(b), Rules Governing Proceedings in the United States District Courts Under 28 U.S.C. § 2255. As Hatcher's claims will be resolved on their merits in the first § 2255 motion, the district court did not err in denying the second motion.

Accordingly, we affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.